Teacher from KwaZulu-Natal loses right to salary payment after dismissal due to qualification falsification

July 10, 09:00

The Commissioner of the Education Labour Relations Council (ELRC), Nolundi Shezi, dismissed a claim of unfair labour practice filed by Kalivan Govender against the KwaZulu-Natal Department of Education. The Commissioner ruled that she lacked a legal right to receive a salary following the official termination of her employment contract.

Reasons for the Dispute

The roots of the disagreement trace back to January 2025, when the department dismissed Govender following a disciplinary hearing. The hearing found her guilty of a serious misconduct related to providing a forged qualification certificate. Govender attempted to overturn this decision by lodging a formal appeal with the office of the Minister of Education of KwaZulu-Natal (MEC).

Dismissal Process and Errors

However, the MEC rejected Govender's appeal and upheld her dismissal in January 2026. Due to a communication failure between the MEC's office and the provincial department's human resources division, the Pinetown district never received notification of the final decision. Despite the dismissal, Govender continued to report to work and received full pay for January, February, and March 2026.

Suspension of Payments and Dispute

The department's administrative oversight suddenly halted when Musavencosi Dlamini, an internal investigator for the department's fraud and ethics unit, intercepted the MEC's order from January. Discovering a documentation error, Dlamini issued an urgent directive in April 2026 to the Pinetown district to freeze Govender's profile and immediately cease processing any further state funds. Consequently, when the standard payday in the province arrived on April 15, 2026, Govender received no payments. The next day, she left the school and did not return, later filing a claim with the ELRC for unfair labour practice and demanding April's remuneration along with a birthday bonus.

Arguments of the Parties in Court

During the hearing, Govender argued that she only learned of her appeal's failure in June 2026, insisting that she deserved compensation for providing direct service to the school until mid-April. She also pointed out that receiving official digital payslips proved her continuous employment. Nevertheless, the department countered, asserting that the earnings after dismissal were solely the result of a standard administrative error, and confirmed that internal mechanisms were already in place to recover and reimburse the erroneously paid salaries for February and March.

Commission's Conclusion

In its final analysis of the evidence, Commissioner Shezi accepted the department's explanation that the payments for February and March resulted from administrative oversight after the appeal outcome was not promptly implemented. Since Govender's employment relationship had already been terminated upon confirmation of her dismissal, the Commissioner concluded that she had no legal right to continue providing services or receiving remuneration. Commissioner Shezi found that the department had a valid reason to stop payments once the finality of her dismissal became known. Ultimately, the ELRC ruled that Govender failed to prove that the department committed unfair labour practice by withholding her April 2026 salary, and completely dismissed her application.

iol.co.zaJuly 8, 06:55

Mpumalanga Education Council orders reinstatement of teacher fired after hospitalization

The Education Labour Relations Council (ELRC) ruled that the Mpumalanga Department of Education must reinstate a teacher because the department acted unfairly by refusing to honor the recommendation for her return to work.

Decision in the N Ngcobo case

ELRC member Yolisa Ndzuta found that the Department unfairly dismissed N Ngcobo, who was represented by the National Association of Teachers Union (NATU), after rejecting a recommendation in her favor made following an inquiry under Section 14(2) of the Educators Employment Act.

The Council ordered the department to reinstate Ngcobo retroactively within 30 days and restore her workplace. Ngcobo, a primary school teacher at Volksrust, was deemed dismissed under Section 14(1) of the Educators Employment Act due to being absent from work for more than 14 consecutive days in 2024.

Positions of the Parties

The Department argued that she had been repeatedly absent without permission, and her whereabouts were unknown after October 2024. The school principal testified that despite attempts to contact her and her family, the school could not locate her, and they had to arrange alternative lessons to minimize disruption to student learning.

However, Ngcobo disputed the department's version, insisting that she was hospitalized due to medical and psychological complications and had informed her supervisor of her absence. She also provided a medical certificate explaining the period during which she was unable to perform her duties.

Proceedings

After her dismissal, Ngcobo exercised her rights under Section 14(2) of the Educators Employment Act, requesting a hearing on 'good cause,' where employees can explain their absence and request reinstatement. At the hearing, the appointed chairperson accepted Ngcobo's explanation and recommended her reinstatement.

Nevertheless, the department rejected this recommendation. HR officer Johannes Malangu stated that the chairperson's findings were merely advisory, and the district director retained the right to accept or reject them. He informed the arbitration that the department had concerns regarding Ngcobo's medical certificate after discovering it was issued by a radiologist, whom the department believed was not a qualified medical practitioner according to the Personnel Administration Measures (PAM).

The department also characterized Ngcobo as a persistent violator who only made contact after her salary was frozen. Ngcobo and NATU refuted these claims, stating that the medical certificate was never questioned during the good cause hearing, and that the department raised objections only after the chairperson had already recommended reinstatement.

Council's Findings

Analyzing the evidence presented, Ndzuta noted that while Section 14(2) grants the employer discretion in deciding on an educator's reinstatement, this discretion is not unlimited. Instead, it must be exercised fairly, reasonably, and after considering all relevant circumstances.

The ruling relied on established case law, which mandates that employers must properly assess the reasons for an employee's absence, their prior conduct, their whereabouts during the absence, and whether the employment relationship became intolerable. The arbitrator concluded that Ngcobo had provided evidence explaining her absence, and this evidence was accepted by the chairperson during the good cause hearing.

The ruling stated: 'The employer's decision is therefore subject to review for fairness.' Ndzuta concluded that the department failed to demonstrate that its decision to reject the recommendation was procedurally and substantively fair. Although the department defended the legality of the alleged dismissal under Section 14(1), it could not justify the unfairness of refusing reinstatement after good cause had been demonstrated.

The arbitrator ruled: 'It is therefore concluded that the applicant was dismissed unfairly.' Ngcobo sought retroactive reinstatement, restoration of salary and benefits, removal of the dismissal status from the PERSAL system, and payment of outstanding remuneration. The department merely argued that she was not entitled to compensation because her dismissal was lawful. The ELRC rejected this argument and ordered Ngcobo to be reinstated retroactively within 30 days of the ruling.

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